SOUTHWIND TRUCKING CO., INC. v. Harvey , 96 Ga. App. 715 ( 1957 )

Townsend, J.,

concurring specially on rehearing. From the standpoint of logic I agree with what is said in the brief of the plaintiff in error in the motion to rehear, which is in substance as follows: Where the case has closed (both plaintiff and defendant having rested, although the defendant has not elected to offer any evidence) and where the plaintiff’s evidence not only fails to make out his case as laid but affirmatively disproves his right to a recovery, a verdict is demanded for the defendant, and the trial court should be empowered to direct such verdict regardless of whether or not the defendant elected to offer evidence. This is the effect of the decision in Parker v. Cramton, 143 Ga. 421 (85 S. E. 338) and Thompson v. Etowah Iron Co., 91 Ga. 558 (17 S. E. 663). However, the decision in Seymour v. Seymour, 210 Ga. 49 (77 S. E. 2d 433) disapproves that part of the Etowah Iron Co. case which held it proper to direct a verdict under similar circumstances where the plaintiff “failed to make out a case” and follows a ruling in Exposition Cotton Mills v. Western & Atlantic R. Co., 83 Ga. 441 (10 S. E. 113) where a verdict was absolutely demanded for the defendant because the plaintiff admitted that the defendant did not cause the damage sued for. It also follows Hanson v. Crawley, 51 Ga. 528, which states that the defendant has one of two alternatives—to move for a nonsuit or to argue to the jury that the plaintiff has failed to make out his case. See also Smith v. Robinson, 212 Ga. 761, 763 (95 S. E. 2d 798). This constitutes a ruling that in the situations there involved the court had no authority, at that stage of the proceedings, to direct a verdict even though the evidence demanded it in favor of one of the parties.

Should a jury case come to trial and both plaintiff and defendant rest without offering any evidence, it could not be referred to the jury nor could the court direct a verdict because there is no evidence on which a verdict might be predicated. Should a jury case come to trial and the plaintiff introduce some evidence and then rest, the case could not at that stage be referred to a jury or the judge direct a verdict because the defendant has not yet elected whether or not to introduce evidence. But, should a jury case come to trial and both plaintiff and defendant rest, although the defendant elected not to offer any evidence after the plaintiff had offered some, such a case is ready for the jury. It is my opinion that, whenever a case is ready for submission to' the jury, that stage of the trial has been reached where the court, under the provisions of Code § 110-104 should, if the evidence demands a verdict for either party, direct a verdict for that party, and that his refusal to do so would lay the foundation for a motion for a judgment notwithstanding the verdict. The court may under such circumstances direct a verdict for the plaintiff although the defendant has introduced no evidence. Murphy v. Davis, 122 Ga. 306 (50 S. E. 99); Solomon v. Bateman-Freeman Co., 173 Ga. 776 (161 S. E. 357). It would be illogical and unjust to hold that in such a situation the court has authority to direct a verdict for the plaintiff when the evidence demands it, but has no authority to direct a verdict for the defendant when the evidence demands a finding that the plaintiff is not entitled to recover.

The record here fails to show that the defendant rested his case before making the motion for a directed verdict. Likewise, in the Seymour, Exposition Cotton Mills, Hanson and Etowah Iron Co. cases it does not appear that the defendant closed before making the motion. In such a case, even after the motion is made, the defendant may still offer evidence if he desires, for which reason a nonsuit and not a directed verdict is the proper ruling to be sought. Since I find no case where, the defendant having offered no evidence but having also rested his case at the conclusion of the plaintiff’s evidence, it is held that a motion for a directed verdict is improper, I concur here only because this record does not disclose that the defendant had in fact rested his case at the time the motion was made.